Officials should pay for taking people’s property

August 22, 2006

Editorial

Politicians, environmentalists and professional planners all claimed the 2004 passage of Measure 37 in Oregon, which forces governments to compensate people when zoning rules or development restrictions lower a property’s value, would mean the end of the world. And it has spelled the end — for cost-free regulating.

But the empowerment of property owners has meant a new beginning for 82-year-old Vern Waite, who credits passage of the law with finally allowing him and his wife to build their Clackamas County dream home — a mere 13 years after applying for a permit.

The Waites’ story, published recently in the Portland Oregonian, puts a human face on a debate that too often is focused on broad policy questions, and reminds us that attacks on property rights also put at risk something just as important — personal dreams and the pursuit of happiness.

For 13 years, Clackamas County denied the Waites permission to build a 40-by-40-foot manufactured home on 15 acres, using various zoning changes and growth-control strictures to turn thumbs down. The passage of Measure 37, which represented a popular backlash against the anti-property-rights policies that have made Oregon the mecca of the slow- and no-growth crowd, gave the Waites hope that they might finally get to use their land as they desired. But it wasn’t until February of this year, when the Oregon Supreme Court upheld the constitutionality of the measure, and county officials were faced with the prospect of having to compensate the Waites for the diminution of their land’s value, that the permit was issued.

Amazing, isn’t it, the change in attitude that occurs when regulating isn’t cost-free anymore? Until February, denying the Waites the right to build was a cost-free decision for local officials. All the burden was borne by the Waites. But when faced with having to pay a Measure 37 claim — with having to compensate the Waites for a “taking,” as required by the Fifth Amendment — the county finally relented.

“Vern Waite never set out to be a crusader,” reports The Oregonian. All he and his wife wanted was to build their vacation home. The passage of Measure 37 gave him the opportunity to fight back, and to right an injustice, and he took it. “They’ve been doing everything they could over the years to keep us from building,” the retired dentist told the newspaper. “I’ve just never let go of the idea that people should be able to build a house on their own property.”

But Waite is one of many who apparently hold to such quaint old ideas. Clackamas County has an estimated 450 Measure 37 claims filed against it — each one a challenge to the petty totalitarians who want to impose their planning ideals on the rest of us, our property rights be damned. The playing field between the regulators and the regulated is being leveled in Oregon, because the regulators must now pay for the pleasure of messing with other people’s lives.

Forcing the master planners to pay for the harm they do people is not only the right, but the constitutional thing to do.